Analyzing the Impact of the Great Sunshine Act Controversy

APRIL 09, 2012

Ed Rabinowitz

There is much debate over the Sunshine Act. The legislation, tucked within the Obama administration’s Affordable Care Act, requires drug and medical device manufacturers to annually report payments and other transfers of value to physicians and teaching hospitals. The objective, clearly, is to reduce medical conflicts of interest, with ‘payment data’ posted on public websites.

Contrasting views exist even within the medical profession as to whether this legislation has merits, or if it will prove to be more counter-productive. And perhaps most importantly, will it have a positive or negative impact on the way physicians practice medicine?

Attorney Amy Galloway, a director with Tripp Scott’s health care practice, has heard both sides of the story.

Different spinsGalloway says there is considerable fear that the Sunshine Act will chill relations between drug manufacturers and physicians, and thereby decrease or limit educational opportunities. For example, doctors have noticed of late a reduction in the number of invitations to functions where a drug representative would discuss the risks and benefits of a name brand versus a generic drug. Physicians, she says, view those professional gathers as extremely valuable.

“Doctors don’t care that the drug companies list them or report them as receiving an honorarium or participating in dinners, because in their minds, those were good things,” Galloway explains. “And they were good things not just because maybe they got a free dinner, but because they perceived them as real opportunities to learn about various drugs or interactions, and also be at an event with their colleagues where they could discuss it among themselves.”

Galloway points out that if cardiologists are writing prescriptions for Coumadin, they’re doing so not because they have a relationship with the drug representative or because the drug is or is about to go generic. Rather, physicians are writing the same script and it’s the managed care insurer who’s telling the patient what they can and can’t have in the form of the drug.

“It has nothing to do with the fact that the doctor got a pen from the drug rep,” she says.

Missing the pointGalloway believes that the Sunshine Act misses the mark; that it interferes with a relationship that is not necessarily part of the problem. And in some respects, implies that physicians are not currently making prescribing decisions in the best interests of their patients.

“The act itself implies that the drug companies have this sway over the physician if the physician participates in their educational programs,” says Galloway, who has seen the agendas of medical staff meetings where representatives from pharmaceutical companies are present. “There might be a discussion about a medical management issue and then a much shorter presentation and question and answer about a specific product.

“And so now you have neither,” she continues. “Because if the response of the drug companies is going to be, ‘We’re just not going to commit this kind of outreach, because in reporting it, it’s either burdensome or expensive, or we feel like it’s basically punishing us or making us appear like we’re reporting something wrong,’ then you’ve lost on more than one account.”

What’s the goal?Galloway believes that some of the goals of the Affordable Care Act are to try to improve physician-to-physician communication, and to try to make medical records more available to both the patient and to other providers who are part of the patient’s healthcare team. But a reporting requirement is not necessary to have a physician ask a patient during an annual check-up which medications they’re taking, so as to avoid a potential overlap.

“That’s just good patient care,” she says. “That’s not going to be driven or facilitated by this act, in my opinion.”

Of course, Galloway does acknowledge that if 70% of a thriving cardiology practice’s patient population is suddenly under some new type of regimen for potential stroke or heart attack prevention and is prescribing a different drug, then maybe there is an isolated problem.

“Because the physician isn’t using his or her independent judgment to evaluate [the merits of the new medication],” she says.

But on the other hand, says Galloway, if there’s a new drug that might lessen a particular side effect and enable the patient to achieve better results, why wouldn’t the physician prescribe it?

“Isn’t that the whole point of why they spend millions of dollars developing new drug therapies?” Galloway asks.

In the end, Galloway believes the Sunshine Act was “one of those acts that got passed because it sounded good,” but perhaps wasn’t completely thought through. Rather, she says, there are other issues that could have been better or more comprehensively addressed.

“Don’t we have better things to do?” she asks, rhetorically. “That would be my point.”